- A Kentucky trial court has dismissed the lawsuit of a worker who claimed she was hired to work as a server at Olive Garden but fired the next day because of her skin color (McMillian v. GMRI Inc., No. 5:18-189 (E.D. Ky. April 22, 2019)).
- Breyanna McMillian applied for a job at Olive Garden in 2016, then she said she was hired and told to show up for training the next day. The hiring manager, however, testified that although he told her about the training schedule at the beginning of the interview, he decided not to hire her because of some of her answers, and an automated email was sent to the address she provided to tell her she had not been hired. McMillian said she didn't see the email and showed up to training wearing normal clothes, while the other trainees were in uniforms. McMillian said managers pulled her aside and told her she was "too dark" to work at the restaurant, gave her a $20 bill and told her to "go back to Burger King." McMillian's account was disputed by the Olive Garden employees, who denied the derogatory statement and said she was given the money to reimburse her for her time and offered a free meal. McMillian sued in 2018, alleging that she was fired because of her skin color in violation of Kentucky and federal law.
- The trial court granted summary judgment for the employer, explaining that, based simply upon her unsupported testimony, McMillian hadn't created an issue that could go before a jury.
Treating a job applicant or an employee differently because they are a member of a certain race or because of personal characteristics associated with that race, such as skin color or hair texture, is race discrimination, according to the U.S. Equal Employment Opportunity Commission (EEOC). And unlawful harassment, according to the EEOC, can include racial slurs and offensive or derogatory remarks about a person's color, and federal and state law forbids this discrimination in any area of employment, including hiring.
Federal law generally requires that plaintiffs show they were treated differently than others outside their protected class. The court said McMillian, an African American woman, is a member of a protected class, but that it was "unclear," why she thought she was replaced by someone outside the protected class as she conceded in her deposition that the company hires servers "of all different races and skin colors, including dark-skinned African Americans." In addition, McMillian testified that she saw a dark-skinned, African American male at the new employee training.
The court also noted other problems with McMillian's lawsuit — that a jury could conclude that she wasn't hired in the first place and that it made little sense that she would be hired one day and fired the next based on the color of her skin. The allegations illustrate, however, the effect managers can have on employees. Experts have said managers who have regular contact with employees and customers are often the cause of legal claims, making training a critical component of compliance.